Contract Law and the Social Contract: Rethinking Law Reform in the Field of Contract Law from the Perspective of Social Contract Theory

Abstract

As Serbia is on the verge of reforming its law of obligations, it seems interesting to consider the implications of such reform from a comparative perspective. In line with the theme of this year’s Kopaonik School of Natural Law, this paper endorses a theoretical approach. It showcases the possible, yet complex links that exist between contract law and social contract theory by building on the work of Lyuben Dikov — an established Bulgarian authority prior to communism. Although the social contract is a rational concept and not an historical event, the prominence of particular ideas about governance in a jurisdiction, especially at the time key principles of contract were moulded, may provide insights regarding the function that has been attributed to contract law. Then, the paper examines the ‘social contracts’ embedded in the contract laws of two jurisdictions, which have different paths of historical and social development — England and Bulgaria, to provide concrete examples of the usefulness of Dikov’s theory as a lens of analysis of contract law and to highlight why contract law is not merely a set of technical rules, but indeed forms part of a jurisdiction’s social model. Hence it seems relevant to encourage debate on the ‘social contract’ embedded in the current proposal for a Serbian civil code as the issue has both conceptual and practical implications.

Keywords: contract law and the social contract; law reform; Serbian law reform; Serbian law of obligations, Bulgarian contract law, English contract law, Lyuben Dikov, comparative contract law, Serbian civil code